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Heard Mr.R.K.Sharma, learned counsel for the petitioners and
Mr.D.C.Mukherjee, learned counsel for opposite party Nos. 3, 4 and 5.

The petitioners have challenged the order dated 3rd of February, 2006,
passed by the Civil Judge (SD), Sitapur in civil suit No.394 of 2005,
whereby the petitioners' objection against the counter claim filed by the
respondents-defendants has been rejected as also the order dated 14th of
September, 2009, passed by the Additional District Judge, Sitapur in Civil
Revision No.25 of 2006, upholding the order passed by the Civil Judge.

Briefly the facts of the case are that the petitioners filed a suit for
permanent injunction, which is registered as Civil Suit No.394 of 2005
against opposite parties 3 to 8/defendants restraining them from claiming
the opposite party No.4 as Secretary to the Bank and Financial Institution.
The opposite party Nos.3 and 4 (defendants Nos.1 and 2) had already filed a
Caveat. The Civil court fixed the date for written statement as 18th of
August, 2005 and for framing of issues as 25th August, 2005 and for disposal
of temporary injunction application on 18th of July, 2005. On 18th of July,
2005 the court adjourned the matter for 20th of July, 2005. On 20th of July,
2005, opposite party No.4 filed objection against the application for
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temporary injunction. The court fixed the next date on 22nd of July, 2005 for
disposal of the application. Thereafter on 16th of August, 2005, the
petitioners' moved an application under Order XXIII Rule 1 of Code of
Civil Procedure for abandonment of suit, upon which the court fixed the
next date on 18th of August, 2005. On 18th of August, 2005 the case was
adjourned for 25th of August, 2005. Again on 25th of August, 2005 and 27th
of August, 2005 the case was adjourned. Thereafter the case was adjourned
on several dates and on the date fixed on 18th of January, 2006, the opposite
party No.3 to 8 moved an application to register their counter claim. On
24th of January, 2006 the petitioners filed objection against the said
application and on 31st of January, 2006, the opposite parties/defendants also
filed objection. On 3rd of February, 2006 the trial court passed the order
impugned, whereby the petitioners' objection against the counter claim was
rejected with the observations that the petitioners' may withdraw the suit,
but will proceed on the counter claim filed by the opposite parties. Being
aggrieved with which the petitioners preferred a revision which has also
been rejected.

The learned counsel for the petitioners submits that the order XXIII
Rule 1 speaks that at any time after the institution of a suit, the plaintiff may
as against all or any of the defendants abandon his suit or abandon a part of
his claim. He further submits that as soon as the plaintiff moves such
application, he abandons his claim and no formal order of the court is
required, thus the abandonment becomes effective immediately as soon as
such application is presented before the court. In support of his submission
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he cited the following decisions:-

(1) Sheikh Khaliqujjama (died) substituted by his legal representatives
versus Akhtarujjam and others, reported in 2004 (55) ALR 368. (para
3 is relevant, which is to be quoted).

(2) Smt.Raisa Sultana Begum and others versus Abdul Qadir and
others, reported in AIR 1966 Allahabad 318 (V 53 C 94). In this case
the suit was filed in the court of learned Munsif by the three applicants.
One of them, namely, Ghufran Ahmad, made an application stating that he
had no dispute left with the defendants-opposite parties and praying that his
name might be expunged from the array of plaintiffs because he was left
with no interest in the subject-matter of the suit. Before passing any order
on the application Mr.Gufran Ahmad filed an affidavit stating that the
application had been made by him on account of fraud practiced upon him
by the opposite parties and that he did not want to withdraw from the suit.
Learned Munsif allowed his earlier application holding that once he had
withdrawn from the suit, he could not resile from the withdrawal and that
even if he had withdrawn on account of fraud practiced upon him, his
remedy was by means of another suit. Thereafter the revision was filed.
The revisional court referred the matter to the larger Bench with the
following question:-

"Can the plaintiff who has already moved an application under sub-
Rule (1) of Order XXIII, Rule 1, CPC withdraw the application for the
withdrawal of the suit before orders are passed on the withdrawal
application, i.e., the suit is, as far as the plaintiff is concerned, struck off
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from the file?"

The larger Bench held that since withdrawing a suit is a unilateral act
to be done by the plaintiff, it requires no permission or order of the Court
and if it is not subject to any condition, it becomes effective as soon as it is
done just as to compromise does. Any information of it given to the Court is
not part of it, so also any order passed by the Court on receiving the
information. The act is like a point and not continuous like a line having a
beginning and an end. Either it is done or not done; there is nothing like its
being done in completely or ineffectively. The consequence, of an act of
withdrawal is that the plaintiff ceases to be a plaintiff before the Court. This
is the natural consequence of the act; a further consequence imposed by sub-
rule (3) is that he cannot institute any fresh suit in respect of the subject
matter. He becomes subject to this bar as soon as he withdraws the suit. It
follows as a corollary that he cannot revoke or withdraw the act of
withdrawal. Thus the question referred to the Larger Bench was answered
in the negative manner.

(3) Hulas Rai Baijnath versus K.B.Bass and Co.Ltd. Reported in 1963
Allahabad 368 (V 50 C 105). In this case the court hold that the power to
withdraw the suit under Order XXIII Rule 1 (1) is absolute. The law
regarding the withdrawal of a suit gives the plaintiff the liberty to
withdraw from a suit unconditionally on finding it unsustainable, or for any
other reason. No leave or order is necessary for this.

The aforesaid judgment of this court was appealed to the Hon'ble
Supreme Court. The Supreme court affirmed the order passed by this court
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and dismissed the appeal, which is reported as M/s.Hulas Rai Baij Nath
versus Firm K.B.Bass and Co., reported in AIR 1968 Supreme Court
111 (V 55 C 30). The Hon'ble Supreme Court held that the language of
Order 23 Rule 1, sub-rule (1), CPC, gives an unqualified right to a plaintiff
to withdraw from a suit and if no permission to file a fresh suit is sought
under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as
the court may award and becomes precluded from instituting any fresh suit
in respect of that subject-matter under sub-Rule (3) of that Rule. There is
no provision in the Code of Civil Procedure which requires the Court to
refuse permission to withdraw the suit in such circumstances and to compel
the plaintiff to proceed with it.

(4) Kamta and another versus Gaya Prasad reported in AIR 1972
Allahabad 143 (V 59 C 34). In this case this court relying upon a decision
of the Hon'ble Supreme Court rendered in the case of Hulas Rai versus
K.B.Bass and Co. (Supra) held that the sub-rule (1) of Rule 1 of Order 23
CPC confers an unqualified right on the plaintiff to withdraw the suit at any
time.

(5) Upendra Kumar and others versus District Judge, Azamgarh and
others, reported in 1997 (1) Allahabad Rent Cases, 594. In this case in a
suit for declaration and for cancellation of deed of sale the plaintiff moved
an application for withdrawal of suit. However, before any order could be
passed on the said application, the plaintiffs filed another application for
dismissal of the said application. The defendants filed objection. While
allowing the application, the subsequent application moved by the plaintiff
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for withdrawal of the earlier application was rejected. Against which
revision was filed. The revisional court also upheld the order passed by the
trial court. Thereafter the order was challenged in the writ petition. The
petitioners contended that the application being an application under Order
23 Rule 1 of the Code of Civil Procedure, it become absolute as soon it was
filed, therefore, the same can not be withdrawn or cancelled by means of
any subsequent application. In asmuch as withdrawal of the suit is unilateral
act which become absolute as soon the same is filed before the court. This
court held that the withdrawal or abandonment without leave being a
unilateral act of the plaintiff, the defendant can not oppose such unilateral
act, it is only for the Court to examine whether such act is an abandonment
and has been exercised unilaterally when the same is sought to be complete
as soon made without depending on any order being made thereon by the
Court or its acting upon the same and attracting the consequence of sub-rule
(4) of Rule 1, Order 23 of the CPC.

Accordingly he submits that as soon as the petitioners-plaintiffs
moved the application for abandonment, their act had become complete and
suit was abandoned. Accordingly the suit was not in existence, therefore, it
was not open for the opposite parties-defendants to file counter claim and
the civil court as well as the revisional court has committed error in
entertaining the counter claim filed by the opposite parties/defendants.
Thus the orders impugned suffer from error and are unsustainable.

In reply Mr.D.C.Mukherjee, learned Advocate by inviting the
attention of this court towards the same very decision i.e. (Upendra Kumar
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and others versus District Judge, Azamgarh and others (Supra)
submitted that the present case is not a case of abandonment, but it is a case
of non prosecution. There is a great difference between two, as has been
held in the aforesaid judgment itself. The non-prosecution in a case settled
between the parties means the pursuing of the claim is complete. It is not an
abandonment of the claim. It is a consequence of the settlement of the
claim by reason whereof the pursuit is complete. It is an achievement of
the claim, whatever might be the manner. Thus he submits that it is
necessary to examine as to whether the application moved by the
petitioners-plaintiffs is an abandonment within the meaning of sub Rule (1)
of Rule 1 of Order 23 or it is a case of non-prosecution.

It is stated that in the present case the petitioners filed a suit for
permanent injunction restraining the defendant No.4 from claiming as
Secretary of the Bank. Now through the application for withdrawal of the
suit it has been submitted that by means of orders dated 28.7.2005 and
30.7.2005 their grievances have been redressed and no cause of action
remains to pursue the suit. Thus, it is evident that under the order of the
authority concerned, the dispute has been settled and purpose of filing the
suit has been served that is why the petitioners are not pursuing the case. It
is not the case that they have abandoned their claim. So far as the
proposition laid down by the Hon'ble Supreme Court on abandonment of the
suit is concerned, he does not dispute so, but submits that the word
'abandonment' has been defined as relinquish, surrender or give up, but here
the petitioner is withdrawing the suit on fulfillment of the object. He is
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neither relinquishing, surrendering, nor giving up his claim. Thus he
submits that the application moved by the petitioners for withdrawal of the
suit requires the order of the court and before passing the order by the court,
the opposite parties-defendants being party, registered their counter claim,
therefore, for the purpose of adjudication of their counter claim the suit still
exists.

Upon perusal of the application moved by the petitioners for
withdrawal of the suit, I find that the language of the application is very
clear as from the application it has been stated that though they filed suit
for permanent injunction against the defendant No.4, who was claiming
himself as a Secretary of the Bank, but now under the orders of the Deputy
Registrar, their purpose of filing the suit has been fulfilled and now no
further cause of action remains, therefore, they do not want to pursue their
suit, rather they want to get it returned unconditionally. As the word
'abandonment' as well as the 'non-prosecution' has been interpreted by this
court in the case of Upendra Kumar (Supra) in the light of the definition
given in the new Shorter Oxford Dictionary, I am in definite view that it is
not a case of 'abandonment' but is is a case of 'non-prosecution', due to
fulfillment of their object of filing the suit, which requires order to be
passed by the Civil Court and since before passing the order by the Civil
Court the opposite parties-defendants have registered their counter claim,
they have right to continue with the suit with their counter claim. Thus I
do not find error in the orders passed by the courts below.